Opinion
352348 352354
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TURON JEROME REAVES, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. FELIX ANTOINE JONES-HILL, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC Nos. 19-000618-01-FC, 19-003777-01-FC.
Before: Thomas C. Cameron, P.J., and Kathleen Jansen and Elizabeth L. Gleicher, JJ.
Per Curiam.
Defendants Turon Jerome Reaves and Felix Antoine Jones-Hill were tried jointly, before a single jury. The jury convicted both defendants, as charged, of first-degree premeditated murder, MCL 750.316(1)(a), three counts of assault with intent to commit murder, MCL 750.83, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and two counts of possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. The trial court sentenced Reaves to life imprisonment without parole for the first-degree murder conviction, parolable life terms for each assault with intent to commit murder conviction, and two to five years in prison for the felon-in-possession conviction, to be served concurrently, but consecutive to concurrent five-year terms of imprisonment for the felony-firearm convictions. The court sentenced Jones-Hill to life imprisonment without parole for the first-degree murder conviction, 20 to 30 years in prison for each assault with intent to commit murder conviction, and two to five years in prison for the felon-in-possession conviction, to be served concurrently, but consecutive to concurrent five-year terms of imprisonment for the felony-firearm convictions. Reaves now appeals as of right in Docket No. 352348 and Jones-Hill appeals as of right in Docket No. 352354. We affirm in both appeals.
Defendants' convictions arise from a drive-by shooting on Eight Mile Road in Detroit at approximately 2:00 a.m. on October 14, 2018. The four victims were in a Dodge Charger when a Ford Fusion pulled up along the driver's side of their vehicle and an occupant of the Fusion began shooting at the victims' vehicle. Toma Al-Saoor ("Toma"), the driver of the Charger, his brother Taef Al-Saoor ("Taef"), who was a backseat passenger, and Taef s girlfriend, Mireya Jurado, who was also in the backseat, were all shot. Taef died from his injury, a gunshot wound to the head. A fourth occupant, Rami Hadaya, who was the front-seat passenger, was not injured. The prosecution's theory at trial was that both defendants were occupants of the Fusion and they targeted the victims' vehicle in a case of mistaken identity. The prosecutor argued that Reaves was driving the Fusion and Jones-Hill was the shooter.
The prosecution presented evidence that the shooting was preceded by an earlier incident at the Ace of Spades strip club on Eight Mile Road in Detroit. Shortly before the two defendants left the club, Jones-Hill and a man known as "O" were involved in an altercation in the parking lot, during which Jones-Hill removed an assault rifle from the Fusion. A security guard intervened, kept Jones-Hill from raising his rifle, and directed "O" to leave. The guard also asked Jones-Hill to leave, but allowed him to go back inside the club to get Reaves. The security guard placed Jones-Hill's assault rifle on a backseat in the Fusion when Jones-Hill went inside the club. When the two defendants came back out, Jones-Hill asked the guard where "O" went, but the guard did not know. Reaves then got into the driver's seat of the Fusion and Jones-Hill got into the backseat, where the guard had placed the assault rifle. The two then left the club together in the Fusion. The prosecutor's theory at trial was that Jones-Hill intended to "settle a score" with "O" when they left the club.
The shooting occurred within minutes after defendants left the club's parking lot. The vehicle that "O" drove, as depicted in surveillance recordings, was a gray Dodge Challenger; it was a unique, newer model with a wet paint finish and tinted windows. The victims were driving a similar looking Dodge Charger that night. The prosecutor argued that defendants mistook the victims' vehicle for the vehicle driven by "O."
Defendant Reaves conceded that he was at the club just before the shooting, but denied possessing any weapons or engaging in any argument at the club that night, or doing anything to actively assist in the charged crimes. Jones-Hill argued that from the security guard's observations, it was "O," not Jones-Hill, who was perceived as a threat, and that there was no evidence identifying him as the person who shot at the victims' vehicle.
I. ISSUES COMMON TO BOTH DEFENDANTS
A. AIDING OR ABETTING INSTRUCTION
Defendants argue that the trial court improperly expressed its view of the evidence during preliminary comments when instructing the jury on aiding or abetting, which thereby deprived them of a fair trial. We disagree.
Initially, although only defendant Reaves objected to the trial court's comments, because the court's comments and ruling affected both defendants, the issue may also be considered preserved with respect to defendant Jones-Hill. See People v Griffin, 235 Mich.App. 27, 41 n 4; 597 N.W.2d 176 (1999), overruled in part on other grounds by People v Thompson, 477 Mich. 146, 148 (2007). As explained in People v Mitchell, 301 Mich.App. 282, 286; 835 N.W.2d 615 (2013):
"We review a claim of instructional error involving a question of law de novo, but we review the trial court's determination that a jury instruction applies to the facts of the case for an abuse of discretion." People v Dupree, 486 Mich. 693, 702; 788 N.W.2d 399 (2010). However, not all instructional error warrants reversal. Reversal is warranted only if" 'after an examination of the entire cause, it shall affirmatively appear' that it is more probable than not that the error was outcome determinative." People v Lukity, 460 Mich. 484, 495-496; 596 N.W.2d 607 (1999), quoting MCL 769.26. "[T]he effect of the error is evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error." Lukity, 460 Mich. at 495. The verdict is undermined when the evidence clearly supports the requested lesser included instruction that was not given to the jury. People v Cornell, 466 Mich. 335, 365; 646 N.W.2d 127 (2002).
Reaves has also raised constitutional arguments, which are reviewed de novo. People v Armstrong, 490 Mich. 281, 289; 806 N.W.2d 676 (2011).
When instructing the jury on aiding or abetting, the trial court stated:
I also need to explain to you another concept known as aiding and abetting because the evidence as you 've heard it had one occupant of the Fusion doing the shooting and the other apparently doing the driving You should understand the concept of aiding and abetting here as well.
So in this case both Defendants are charged with committing first degree premeditated murder and assault with intent to murder, felons in possession of firearm and felony firearm. Anyone who intentionally assists someone else in committing any crime is as guilty as the person who actually commits the crime and can be convicted of that crime as an aider and abettor. . . . [(Emphasis added.)]
Defendants argue that the emphasized comments improperly conveyed to the jury the court's view regarding disputed questions of fact, namely, that the shots were fired from the Fusion and that one occupant of the Fusion was the shooter and the other the driver.
Preliminarily, we agree with defendants that, when responding to the defense objection, the trial court inaccurately stated that it had qualified its remarks by stating that it was commenting on the prosecution's theory of the case. However, that in fact was the prosecutor's theory and the court did not misrepresent the evidence by stating that "the evidence as you've heard it had one occupant of the Fusion doing the shooting and the other apparently doing the driving." This remark was consistent with evidence presented at trial. We believe that defendants overstate the effect of the trial court's remarks as an expression of the court's view of the evidence. Viewed in context, the remarks were made as introductory comments intended only to explain why the court was instructing the jury on aiding or abetting-because, as the trial court indicated, evidence was presented that "one occupant of the Fusion [was] doing the shooting and the other apparently doing the driving." The court did not indicate that it believed that testimony or express any opinion whether the testimony implicated either of the defendants. In this context, the court's remarks cannot be viewed as endorsing the prosecutor's theory or usurping the jury's role as the fact-finder. See People v Young, 364 Mich. 554, 558-559; 111 N.W.2d 870 (1961).
Furthermore, to the extent that there was any perceived risk that the jury might interpret the court's remarks as an expression of the court's view of the evidence, the trial court adequately protected defendants' rights to a fair trial by instructing the jury to disregard any opinions that the jury believed the court may have expressed. Specifically, the court instructed:
My comments, rulings, questions and instructions are also not evidence. It is my duty to see that the trial is conducted according to the law and to tell you the law that applies to the case. However, when I make a comment or give an instruction, I am not trying to influence your vote or express a personal opinion about the case. If you believe that I have an opinion about how you should decide the case, pay no attention to that opinion. You are the only judges of the facts and you must decide this case only from the evidence.
"Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003).
In sum, viewing the instructions as a whole and in context, we disagree with defendants' contention that the trial court's preliminary comments would have been understood as an expression of the trial court's view of the evidence, as opposed to merely an explanation for why the court was providing an instruction on aiding or abetting. To the extent that the comments could have been perceived as such, the court's instruction to the jury to disregard any perceived opinion by the court, which the jury is presumed to have followed, protected defendants' right to a fair trial.
B. MCR 6.202 AND THE RIGHT OF CONFRONTATION
Defendants argue that a report prepared by Brian Grabowski, a firearms forensic scientist, was erroneously admitted at trial in lieu of calling Grabowski as a witness. We disagree.
To preserve an evidentiary issue for appeal, the party opposing the admission of evidence must object at trial and specify the same ground for objection that he asserts on appeal. MRE 103(a)(1); People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001). Defendants argue that the report was not admissible under MCR 6.202 because the prosecutor failed to comply with the requirements of the court rule. They further argue that the introduction of the report without calling the report's author to testify violated their constitutional right of confrontation. Jones-Hill also argues that the report should not have been admitted because its author, Brian Grabowski, was not named on the prosecution's witness list. Because defendants did not object on any of these grounds at trial, these appellate arguments are unpreserved. Jones-Hill also argues that the report should not have been admitted because it contained references to a firearm and other ammunition that was not relevant to this case. However, as further discussed below, the prosecution agreed to redact this information from the report before it was admitted at trial.
Whether the prosecutor complied with the requirements of MCR 6.202 is a question of law, which is reviewed de novo. People v Mardlin, 487 Mich. 609, 614; 790 N.W.2d 607 (2010). Constitutional issues are also reviewed de novo. People v McCuller, 479 Mich. 672, 681; 739 N.W.2d 563 (2007). However, unpreserved issues are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
Before trial, under MCR 6.202, the prosecution filed a notice of its intent to introduce the firearm examiner's laboratory report at trial in lieu of calling the author of the report as a witness. A copy of the report was included with the notice. Neither defendant filed objections to the prosecution's notice of intent.
MCR 6.202 provides, in relevant part:
(B) Disclosure. Upon receipt of a forensic laboratory report and certificate, if applicable, by the examining expert, the prosecutor shall serve a copy of the laboratory report and certificate on the opposing party's attorney or party, if not represented by an attorney, within 14 days after receipt of the laboratory report and certificate. A proof of service of the report and certificate, if applicable, on the opposing party's attorney or party, if not represented by an attorney, shall be filed with the court.
(c) Notice and Demand.
(1) Notice. If a party intends to offer the report described in subsection (B) as evidence at trial, the party's attorney or party, if not represented by an attorney, shall provide the opposing party's attorney or party, if not represented by an attorney, with notice of that fact in writing. If the prosecuting attorney intends to offer the report as evidence at trial, notice to the defendant's attorney or the defendant, if not represented by an attorney, shall be included with the report. If the defendant intends to offer the report as evidence at trial, notice to the prosecuting attorney shall be provided within 14 days after receipt of the report. Except as provided in subrule (C)(2), the report and certification, if applicable, is admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.
(2) Demand. Upon receipt of a copy of the laboratory report and certificate, if applicable, the opposing party's attorney or party, if not represented by an attorney, may file a written objection to the use of the laboratory report and certificate. The written objection shall be filed with the court in which the matter is pending, and shall be served on the opposing party's attorney or party, if not represented by an attorney, within 14 days of receipt of the notice. If a written
objection is filed, the report and certificate are not admissible under subrule (C)(1). If no objection is made to the use of the laboratory report and certificate within the time allowed by this section, the report and certificate are admissible in evidence as provided in subrule (C)(1).
Defendants first argue that the report was not admissible because the prosecution failed to provide a copy of the firearm examiner's report within 14 days of its receipt of the report. Defendants note that the report is dated January 17, 2019, and the prosecutor did not provide a copy of the report until November 4, 2019. As defendants concede, however, the 14-day period does not begin to run on the date a report is prepared, but rather, runs from the date it is received by the prosecution. Defendants concede that the record is silent as to when the prosecution received the report. Defendants argue that because it cannot be determined from the record that the prosecution satisfied the 14-day requirement, they have established a plain error. We disagree. Had defendants objected on this basis at trial, a record could have been developed as to when the prosecutor received the report. But because defendants never objected on this basis at trial, defendants have the burden of establishing a plain error, which is defined as an error that is "clear or obvious." People v Jones, 468 Mich. 345, 355; 662 N.W.2d 376 (2003). A clear or obvious error is "one that is not 'subject to reasonable dispute.'" People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (citation omitted). Because, as defendants concede, the record is silent as to when the prosecution received the report, it is not clear or obvious that the prosecution failed to comply with the 14-day period in MCR 6.202(C). Moreover, the trial court gave both defendants an opportunity at trial to address whether the prosecutor had complied with the procedural requirements of the court rule and both defendants agreed that she had. Therefore, defendants have failed to establish a plain error with respect to whether the requirements of the court rule were satisfied.
We acknowledge that the response from Jones-Hill's attorney was ambiguous. When asked whether the prosecutor had complied with the requirements of the court rule, she replied, "Yes, no, yes, no." However, she never articulated a basis for her belief that the prosecutor failed to comply with the court rule.
Defendants also argue that the admission of the firearm examiner's report without calling the firearm examiner as a witness violated their constitutional right of confrontation. We conclude that because defendants did not file objections to the prosecution's notice of intent to offer the report as evidence at trial in lieu of calling the report's author as a witness, they waived their right of confrontation.
MCR 6.202 is a type of notice-and-demand rule. In Melendez-Diaz v Massachusetts, 557 U.S. 305, 326-327; 129 S.Ct. 2527; 174 L.Ed.2d 314 (2009), the United States Supreme Court observed:
In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial. Contrary to the dissent's perception, these statutes shift no burden whatever. The
defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. Today's decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause. [(Citations omitted).]MCR 6.202(C) is a notice-and-demand rule. It requires the prosecutor to provide notice to the defendant of an intent to use a forensic laboratory report as evidence at trial, after which the defendant is given 14 days to file a written objection to the use of the report. MCR 6.202(C)(1) and (2). This court rule is constitutional, Melendez-Diaz, 557 U.S. at 326-327, 327 n 12, and a defendant who fails to file a written objection to the prosecutor's notice of intent waives his right of confrontation, id. at 313 n 3. In this case, both defendants were notified of the prosecution's intent to introduce the firearm examiner's report as evidence at trial in lieu of calling the report's author as a witness. Neither defendant filed objections. Therefore, defendants waived their rights to confront the report's author at trial.
Jones-Hill also complains that the report's author, Grabowski, was not named as a witness on the prosecution's witness list. The purpose of a witness list is to identify the witnesses who a party intends to call at trial. Grabowski was not called as a witness at trial. Further, there is nothing in MCR 6.202 that requires a prosecutor to include on a witness list the author of a report that the prosecutor intends to offer as evidence at trial. Indeed, the purpose of MCR 6.202(C) is to provide notice of a party's intent to offer a report in lieu of calling the report's author as a witness. It would make little sense to require the prosecutor to list a report's author as a witness where the purpose of the notice is to inform the opposing party that the prosecutor is intending to offer the report without calling the author at trial. Accordingly, there is no basis for concluding that the prosecution's failure to name Grabowski on its witness list affected the admissibility of his report.
Finally, Jones-Hill argues that the report should not have been admitted because it contained references to another firearm and ammunition that was not relevant to this case. This argument is without merit. The record discloses that the prosecutor agreed to redact this information from the report. When the prosecutor published the report to the jury, she did not mention the portions that she had agreed to redact. Accordingly, the record does not support this claim of error.
C. ADMISSIBILITY OF AN AUTOPSY PHOTOGRAPH
Defendants argue that the trial court erred by admitting an autopsy photograph that depicted the decedent's head wound. The court admitted the photograph over defendants' objection. The medical examiner used the photograph to describe the decedent's head wound, and to explain how the nature of the wound was consistent with the use of a high-velocity projectile. We find no error.
This Court reviews a trial court's decision to admit photographic evidence for an abuse of discretion. People v Davis, 320 Mich.App. 484, 488; 905 N.W.2d 482 (2017), vacated in part on other grounds 503 Mich. 984 (2019). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Id. (quotation marks and citation omitted).
Defendants argue that the autopsy photograph of the deceased's gunshot wound to his head should have been excluded because it was only marginally relevant and its gruesome character had a tendency to inflame the jury. In Davis, id. at 488, this Court stated:
Evidence is generally admissible if it is relevant, MRE 402, i.e., if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," MRE 401. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. The "[g]ruesomeness" of a photograph standing alone is insufficient to merit its exclusion. [People v] Mills, 450 Mich. [61, 76; 537 N.W.2d 909 (1995), modified 450 Mich. 1212 (1995)]. The proper question is "whether the probative value of the photographs is substantially outweighed by unfair prejudice." Id.
"Photographs are admissible if substantially necessary or instructive to show material facts or conditions." People v Hoffman, 205 Mich.App. 1, 18; 518 N.W.2d 817 (1994). "If photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible merely because they vividly portray the details of a gruesome or shocking accident or crime, even though they may tend to arouse the passion or prejudice of the jurors." Id. In the case of autopsy photographs, they are considered relevant when they are instructive in depicting the nature and extent of the victim's injuries. People v Flowers, 222 Mich.App. 732, 736; 565 N.W.2d 12 (1997). Photographs are not required to be excluded simply because a witness can orally testify about the same information; a photograph is admissible to corroborate a witness's testimony. Mills, 450 Mich. at 76. However, photographs that depict the gruesome nature of a crime and are not pertinent, relevant, or material to any issue in the case, but serve only to inflame the jurors' minds and prejudice them against the defendant, should be excluded. Id. at 77.
Preliminarily, although Reaves argues that the trial court failed to balance the relevancy of the evidence against its prejudicial effect, the record indicates that the matter was discussed off the record. Although defendants indicated that they would like to be heard later regarding their objections, there is no indication in the record that defendants later raised this issue on the record.
The prosecutor argued at trial that the use of a firearm that was capable of firing high-velocity ammunition was probative of the shooter's intent to kill, which is a necessary element of both first-degree premeditated murder and assault with intent to commit murder. The medical examiner testified at trial that the nature of the decedent's head wound was consistent with the use of a high-velocity projectile. Although the witness was able to orally describe the decedent's head wound, he used the photograph to explain the large gaping nature of the wound, to show how it differed from a small circular entrance wound that is typically found with lower energy projectiles, and to point out the multiple lacerations on the skin and explain how the projectile caused fragmentation of the bone and the underlying brain, which was consistent with a high-velocity projectile. The photograph was relevant not only to corroborate the medical examiner's testimony about the nature of the wound, but also to help illustrate for the jury the points he made in his testimony and the bases for his opinion that the wound was caused by a high-velocity projectile. Furthermore, the angle of the photograph was focused principally on the top of the victim's head, without showing any facial features, which lessened the prejudicial impact of the photo. See People v Howard, 226 Mich.App. 528, 550; 575 N.W.2d 16 (1997) (a photograph of the victim's neck alone, excluding the victim's face, diminished any extraneous prejudice from including the victim's facial features). Considering these factors, the probative value of the photograph was not substantially outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion by admitting the photograph.
II. DEFENDANT REAVES'S REMAINING ISSUES IN DOCKET NO. 354348
A. SUFFICIENCY OF THE EVIDENCE
The prosecution's theory at trial was that Jones-Hill was the shooter, that he was acting in retaliation for the earlier encounter with "O" when he shot at the victims' vehicle, mistakenly believing that he was shooting at "O's" vehicle, and that Reaves aided or abetted Jones-Hill in committing the underlying crimes by driving the Fusion and acting in concert with Jones-Hill when they targeted the victims' vehicle. On appeal, Reaves does not argue that the evidence failed to show that the underlying offenses were committed, but argues that the evidence was insufficient to link him to the offenses and to establish his guilt under an aiding or abetting theory. In particular, he argues that the evidence was insufficient to identify him as the driver of the Fusion, and further, the evidence was insufficient to show that he had knowledge of Jones-Hill's intent to retaliate against "O" or commit any crime, or to show that he assisted Jones-Hill in committing the crime. We disagree.
This Court reviews a challenge to the sufficiency of the evidence de novo. People v Hammons, 210 Mich.App. 554, 556; 534 N.W.2d 183 (1995). This Court must view the evidence in a light most favorable to the prosecution to determine whether there was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v Wolfe, 440 Mich. 508, 514-515; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Circumstantial evidence and any reasonable inferences that can be drawn from the evidence may be sufficient to prove the elements of a crime. People v Abraham, 234 Mich.App. 640, 656; 599 N.W.2d 736 (1999). "This Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." People v Williams, 268 Mich.App. 416, 419; 707 N.W.2d 624 (2005). Any conflicts in the evidence must be resolved in favor of the prosecution. People v Jackson, 292 Mich.App. 583, 587-588; 808 N.W.2d 541 (2011).
To convict a defendant of first-degree premeditated murder, the prosecution is required to prove that the defendant intentionally killed a victim and that the killing was premeditated and deliberate. "Premeditation and deliberation require sufficient time to allow the defendant to take a second look." People v Anderson, 209 Mich.App. 527, 537; 531 N.W.2d 780 (1995). The elements of assault with intent to commit murder are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would have made the killing murder. People v Barclay, 208 Mich.App. 670, 674; 528 N.W.2d 842 (1995). "The intent to kill may be proven by inferences from any facts in evidence." Id.
To convict a defendant under an aiding or abetting theory, the prosecution must prove that (1) the crime charged was committed by the defendant or another person, (2) the defendant performed acts or gave encouragement that assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that he gave aid and encouragement. Carines, 460 Mich. at 757-758; see also People v Robinson, 475 Mich. 1, 6; 715 N.W.2d 44 (2006). An aider or abettor's state of mind may be inferred from all of the facts and circumstances of the crime. Carines, 460 Mich. at 758 . Factors that can be considered include a close association between the principal and the defendant, the defendant's participation in the planning and execution of the crime, and evidence of flight after the crime. Id. at 758. "Mere presence, even with knowledge that an offense is about to be committed or is being committed, is insufficient to show that a person is an aider and abettor." People v Wilson, 196 Mich.App. 604, 614; 493 N.W.2d 471 (1992).
First, the evidence was sufficient to enable the jury to find that Reaves was the driver of the vehicle involved in the shooting. Toma identified the shooter's vehicle as a Ford Fusion. Witness testimony indicated that Reaves and Jones-Hill left the Ace of Spades club minutes before the shooting in a Ford Fusion, and a witness testified that Reaves was driving the vehicle when it left the club and exited onto Eight Mile. A compilation of surveillance videos showed the vehicles involved as they traveled down Eight Mile. In addition, the police were able to view the license plate of the Fusion from a surveillance recording at the Ace of Spades and determine that the vehicle was registered to Reaves's mother, and testimony indicated that Reaves was allowed to use that vehicle. Evidence was also presented that, after the offense, Reaves told his mother that he had scrapped the Fusion for cash. This testimony was sufficient to enable the jury to find that Reaves was the driver of the Ford Fusion that was involved in the shooting, and that he attempted to destroy the vehicle after the offense because of his knowledge of its involvement in the offense.
Reaves additionally argues, however, that there was insufficient evidence of his knowledge and intent to support his convictions under an aiding or abetting theory. The prosecutor's theory at trial was that the charged crimes were committed in retaliation for the earlier altercation between Jones-Hill and "O" at the Ace of Spades club. Testimony indicated that Jones-Hill and "O" were involved in an altercation in the parking lot at the Ace of Spades in which both men produced firearms and "O" directed racial slurs at Jones-Hill. A security guard intervened to defuse the situation and told "O" to leave, and "O" then left in his car. After Jones-Hill retrieved Reaves from inside the club, Jones-Hill asked the guard about "O," and was told that "O" had already left the club. According to the guard, Reaves and Jones-Hill were the only persons to get into the Ford Fusion, but Reaves got into the backseat where the guard had placed the assault rifle that Jones-Hill possessed during the earlier altercation with "O." Although Reaves argues that there was no evidence that he knew that Jones-Hill had a weapon or that Jones-Hill told him about his encounter with "O" minutes earlier, the testimony that the guard placed the assault rifle on the backseat and that Jones-Hill got into the backseat when the two men left the parking lot supported an inference that Reaves was in a position to see the rifle and knew that Jones-Hill had access to the rifle as they were leaving the parking lot. Further, the evidence that the security guard, while armed with his own firearm, helped escort Reaves and Jones-Hill as they left the Ace of Spades lot and exited onto Eight Mile supported an inference that Reaves was aware that something had happened that created a risk of danger to their safety.
The shooting occurred within minutes after Reaves and Jones-Hill left the Ace of Spades club. Testimony indicated that the victims were in a vehicle that was similar looking to the vehicle that "O" was driving, and also had distinct features that were similar to the features on "O's" vehicle. According to testimony, the Fusion was driving slowly on Eight Mile Road and when the victims' vehicle passed the Fusion, the driver of the Fusion pulled to the driver's side of the victims' car as the shooting started. After Toma stopped his vehicle, the driver of the Fusion stopped in front of the victims' car, and Toma also described the Fusion again approaching closer to the victims' vehicle when a second round of gunshots were fired, after which the Fusion drove off down a side street. The evidence of the earlier altercation between Jones-Hill and "O" at the Ace of Spades and that Jones-Hill got into the backseat of the Ford Fusion where the assault rifle had been placed when he and Reaves left the club supported an inference that Jones-Hill had a motive to seek revenge against "O" and was prepared to do so. Further, the evidence that "O" was driving a vehicle that was similar in appearance to the victims' vehicle supported an inference that the victims' vehicle was targeted because Jones-Hill believed it was "O's" vehicle. In addition, the testimony describing the manner in which the Fusion was being driven and how it was maneuvered to enable the shooter to fire upon the victims' vehicle supported an inference that Reaves, the driver, was aware of Jones-Hill's intent to fire the assault rifle at the victims' car, and assisted him in doing so by the manner in which he operated and positioned the vehicle, in particular just before the second round of gunshots.
Furthermore, evidence was presented that although the Fusion was owned by Reaves's mother, Reaves never returned the vehicle and told her that he had scrapped it. When the police searched the home of Reaves's mother, they found the license plate for the Fusion under a dresser in a bedroom that Reaves used, and Reaves's mother denied knowing about it or putting it there. This evidence supported an inference that Reaves acted to destroy the Fusion and hide the license plate because of his consciousness of guilt for his involvement in the charged crimes.
In sum, viewed in a light most favorable to the prosecution, the evidence was sufficient to establish Reaves's guilt of the charged crimes under an aiding or abetting theory.
B. AIDING OR ABETTING INSTRUCTION
Reaves argues that the trial court erroneously instructed the jury on aiding or abetting. We disagree.
Reaves did not object to the trial court's substantive instruction on aiding or abetting at trial. Therefore, at a minimum, this issue is unpreserved and subject to review for plain error affecting substantial rights. Carines, 460 Mich. at 763. As plaintiff observes, however, this issue could also be considered waived. After the trial court instructed the jury, and after addressing Reaves's objection to the court's preliminary comments regarding aiding or abetting, the court asked if there was "Anything else?" and Reaves's counsel answered, "Nope." Because counsel was given the opportunity to identify any issues with the court's jury instructions and he affirmatively represented that there were no other issues, any error in the instructions could be deemed waived. See People v Chapo, 283 Mich.App. 360, 372-373; 770 N.W.2d 68 (2009) (defense counsel's expression of satisfaction with the court's jury instructions waived any instructional error). Regardless, Reaves has not established that the trial court's jury instructions were erroneous.
The trial court instructed the jury on aiding or abetting consistent with M Crim JI 8.1. As relevant to this appeal, the instruction advised the jury that to prove the third element of aiding or abetting, the prosecution was required to prove that the defendant "must have intended the commission of the crime alleged or must have known that the other person intended its commission or that the crime alleged was a natural and probable consequence of the commission of the crime intended." Reaves argues that he could not be guilty of aiding or abetting first-degree murder or assault with intent to commit murder unless he specifically intended the commission of those crimes, and it was improper to instruct the jury that he could be convicted of these crimes if the jury found that the crimes were a natural and probable consequence of the commission of the crimes intended. We disagree. In Robinson, 475 Mich. at 15, our Supreme Court explained the intent necessary to convict a defendant under an aiding or abetting theory:
A defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the offense he intends to aid or abet. Therefore, the prosecutor must prove beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense.
The trial court's instruction, which was consistent with M Crim JI 8.1, accurately described the intent necessary to convict a defendant under an aiding or abetting theory as stated in Robinson. Therefore, we reject this claim of error.
C. LINEUP
Reaves next argues that he was denied a fair trial by the introduction of testimony that he refused to participate in a lineup. Reaves argues that this testimony was irrelevant and it undermined his presumption of innocence. Because Reaves did not object to this testimony at trial, this issue is unpreserved and our review is limited to plain error affecting Reaves's substantial rights. Carines, 460 Mich. at 763-764.
This Court addressed the admissibility of such evidence in People v Benson, 180 Mich.App. 433, 437-439; 447 N.W.2d 755 (1989), rev'd in part on other grounds 434 Mich. 903 (1990), in which it held that a suspect's refusal to participate in a lineup does not invoke the right against self-incrimination, explaining:
Following complainant's testimony, defendant moved to preclude the use of evidence of his own refusal to participate in the lineup in the prosecutor's case in chief. The trial court denied the motion. Subsequently, the prosecution called the police officer who testified that defendant refused to cooperate in the lineup.
A suspect has a right to be represented by counsel at a police lineup, but is not entitled to assert the privilege against self-incrimination. The Fifth Amendment is not implicated by appearance in a lineup; thus, evidence of the refusal to appear in the lineup did not violate defendant's right against self-incrimination. In People v Barnes [107 Mich.App. 386, 389-390; 310 N.W.2d 5 (1981)], we stated that physical differences between a suspect and other lineup participants do not, in and of themselves, constitute impermissible suggestiveness, noting:
"Lineups are conducted in police stations, and the persons who participate in the lineup are taken from those who are being held in custody. It would be unusual indeed if the police had five persons with similar physical characteristics locked up in the same jail. Moreover, the purpose of a lineup is identification. If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact. This is a question of the weight to be given the lineup identification, not its admissibility. It presents no basis for a new trial." People v Lloyd, 5 Mich.App. 717, 724-725; 147 N.W.2d 740 (1967).
The burden rests with the defendant to factually support a claim that a lineup was impermissibly suggestive when counsel was present. There is no authority requiring the police to make endless efforts to attempt to arrange a lineup.
In the within case, complainant went to the police station to view a lineup. Defendant complained that he was much taller than the other lineup participants and refused to attend a stand-up or sit-down lineup and, instead, asked to be transported to the county jail for a lineup. Defendant refused to cooperate in a lineup despite having counsel present and despite police efforts to conduct a sit-down lineup to make the lineup fair under the circumstances. Under these circumstances, we do not believe it was error requiring reversal for the trial court to permit testimony of defendant's refusal to participate in a police lineup. [Footnotes and citations omitted.]
Although Reaves argues that his refusal to participate in the lineup was irrelevant, we believe, as other courts have held, that such evidence is relevant to demonstrate a defendant's consciousness of guilt. See People v Alexander, 49 Cal 4th 846, 905-906; 235 P.3d 873 (2010). It is well-established in Michigan that evidence showing a defendant's consciousness of guilt is relevant and admissible at trial. See People v Goodin, 257 Mich.App. 425, 432; 668 N.W.2d 392 (2003) (addressing evidence of flight). Reaves also argues that this evidence undermined his presumption of innocence because there may be innocent reasons for deciding not to participate in a lineup (e.g., on the advice of counsel or because of a belief that a lineup would not be fair), and he should not be required to participate in a lineup to prove his innocence. However, Reaves never presented any offer of proof below that there were innocent reasons for his refusal to participate in the lineup, such that it would be unfair to allow the prosecution to present this evidence. Moreover, he does not dispute that the trial court properly instructed the jury on the presumption of innocence. Under these circumstances, Reaves has failed to demonstrate that the introduction of this evidence constituted plain error, either because the evidence was irrelevant or because its probative value was substantially outweighed by the danger of unfair prejudice.
Reaves further argues that his right to counsel was violated because he was not informed of his right to counsel when he was asked to participate in the lineup. The Sixth Amendment right to counsel applies to identification procedures. People v Hickman, 470 Mich. 602, 607, 611; 684 N.W.2d 267 (2004). However, because Reaves did not object to the challenged testimony, a factual record was never developed regarding whether Reaves was informed of his right to counsel at any lineup. Regardless, even if Reaves had a right to counsel at a lineup, because he refused to participate in a lineup, no lineup was held. There could be no violation of Reaves's right to counsel at a procedure that was never held.
D. AMMUNITION EVIDENCE
Reaves also challenges the admissibility of evidence that, when searching the home of Reaves's mother, the police found a briefcase that contained live ammunition of a type that could be fired from a rifle. Contrary to what Reaves argues, we are not persuaded that he properly preserved this issue below. We note that his pretrial motion in limine was limited to evidence of firearms recovered during the search, and that Reaves later stipulated to the admission of the photographs of the ammunition. Moreover, although this evidence was discussed, Reaves did not raise any of his appellate challenges to the admissibility of the ammunition evidence. MRE 103(a)(1); Aldrich, 246 Mich.App. at 113. Thus, this issue could be considered unpreserved and subject to review for plain error affecting Reaves's substantial rights. Carines, 460 Mich. at 763-764. In any event, to the extent that this issue is preserved, the trial court did not abuse its discretion by admitting the evidence. People v Douglas, 496 Mich. 557, 565; 852 N.W.2d 587 (2014).
At trial, the police officers involved in executing a search warrant at the home of Reaves's mother testified that, in addition to recovering the license plate to the Fusion, they also recovered a briefcase from the basement that contained live ammunition, including three rounds that could be fired from a rifle. At trial, one of the involved officers testified that the ammunition was a type that could be fired from a rifle. During closing argument, the prosecutor argued that this evidence connected Reaves to the firearm used in the shooting and showed that he had "the tools necessary to have carried out this crime."
On appeal, Reaves argues that the ammunition evidence should have been excluded under MRE 402 because it was not relevant, and under MRE 403 because any minimal relevance was substantially outweighed by the danger of undue prejudice. We disagree.
Relevant evidence is generally admissible, and evidence which is not relevant is not admissible. MRE 402; People v Campbell, 236 Mich.App. 490, 503; 601 N.W.2d 114 (1999). Evidence is relevant if it tends to make the existence of a fact at issue more or less probable than it would be without the evidence. MRE 401; Campbell, 236 Mich.App. at 503. Under MRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v Sabin (After Remand), 463 Mich. 43, 58; 614 N.W.2d 888 (2000). Unfair prejudice does not mean any prejudice, but refers to "the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock." People v Pickens, 446 Mich. 298, 336-337; 521 N.W.2d 797 (1994) (quotation marks and citation omitted).
The prosecutor's theory at trial was that the ammunition found in the briefcase was relevant to connect Reaves to the firearm used in this crime because it showed that he had access to the type of ammunition that was used in the shooting. Reaves first argues that the ammunition was not relevant because it was found at his mother's house and could not be connected to him because he did not reside there. However, evidence was presented that Reaves had access to his mother's home. Indeed, the prosecution also presented evidence that the license plate for the Ford Fusion that Reaves was driving when he left the Aces of Spades club, which was visible in surveillance recordings from the club, was also found in that house. Thus, there was sufficient evidence to enable the jury to find that Reaves had access to the house where the ammunition was found.
Reaves also argues that the photographs and testimony about the ammunition should not have been admitted because there was no testimony that the ammunition was the same caliber of ammunition used in the shooting. However, in the context of firearm evidence, evidence of a defendant's possession of a weapon of the kind used in an offense is considered to be relevant to connect the defendant to that offense. See People v Kramer, 103 Mich.App. 747, 758-759; 303 N.W.2d 880 (1981), quoting 22A CJS, Criminal Law, § 712, pp 965-967 ("a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding justifies an inference of the likelihood or possibility of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred, or for the purpose of illustration, or of showing preparation, or the state of mind or intent of accused"); see also People v Hall, 433 Mich. 573, 580-581; 447 N.W.2d 580 (1989). Although the firearm used in the shooting was never recovered, the security guard at the Ace of Spades club described the weapon in Jones-Hill's possession as a "pistol-style assault rifle," and other testimony was presented that evidence discovered at the crime scene was consistent with the use of a weapon that fired high-velocity bullets, consistent with an assault rifle. The officer testified that the live ammunition found during the search was a type that could be fired from a rifle. This was minimally sufficient to show that the ammunition was of a type that could have been used in the shooting, and thus was relevant to connect Reaves to the firearm used in the offense.
Furthermore, we are not persuaded that the evidence was required to be excluded under MRE 403. The jury was aware that the ammunition could not be conclusively determined to be the same ammunition that was used in this offense. It was up to the jury to determine what weight, if any, to give to the evidence. People v Howard, 391 Mich. 597, 605; 218 N.W.2d 20 (1974). Moreover, contrary to what Reaves argues, the prosecutor did not exploit the ammunition evidence during closing argument, but merely pointed out that the ammunition could have been compatible with the rifle used in this shooting, which was the proper purpose for which the evidence was relevant.
Reaves also argues that the ammunition evidence was subject to MRE 404(b)(1) because it was evidence of another crime, given that he was not eligible to possess ammunition because of his status as a convicted felon. He argues that the evidence was not admissible under this rule because the prosecutor did not provide notice 14 days before trial that she intended to offer this evidence for a proper purpose under MRE 404(b)(1), as required by MRE 404(b)(2). We disagree that the evidence was subject to MRE 404(b).
MRE 404(b)(1) provides that "[evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but such evidence "may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case." In People v Jackson, 498 Mich. 246, 262; 869 N.W.2d 253 (2015), our Supreme Court explained that "by its plain terms, MRE 404(b) only applies to evidence of crimes, wrongs, or acts 'other' than the 'conduct at issue in the case' that risks an impermissible character-to-conduct inference," and "[correspondingly, acts comprised by or directly evidencing the 'conduct at issue' are not subject to scrutiny under MRE 404(b)." In this case, the ammunition evidence was offered for its relevancy to the conduct at issue in this case. That is, it was offered to show that Reaves could be connected to the weapon used in the shooting because of his possession of ammunition of the type that could have been used in the offense. Indeed, there was no attempt to use the evidence for any impermissible character-to-conduct purpose. Therefore, Reaves's reliance on MRE 404(b)(1) is misplaced.
In sum, Reaves has not established any error, plain or otherwise, in the admission of the ammunition evidence.
E. PROSECUTOR'S CONDUCT
Reaves argues that he was denied a fair trial because of several instances of misconduct by the prosecutor. We disagree.
Reaves concedes that there was no objection to the prosecutor's challenged conduct at trial, leaving his claims of prosecutorial misconduct unpreserved. See Abraham, 256 Mich.App. at 274. Review of an unpreserved claim of prosecutorial misconduct "is limited to whether plain error affecting substantial rights occurred." Id. This Court will not reverse if the prejudicial effect of the prosecutor's conduct could have been cured by a timely instruction from the trial court. People v Williams, 265 Mich.App. 68, 70-71; 692 N.W.2d 722 (2005), aff d 475 Mich. 101 (2006).
Claims of prosecutorial misconduct are decided case by case and the challenged conduct must be viewed in context. People v McElhaney, 215 Mich.App. 269, 283; 545 N.W.2d 18 (1996). The test for prosecutorial misconduct is whether the defendant was denied a fair trial. People v Bahoda, 448 Mich. 261, 266-267; 531 N.W.2d 659 (1995).
1. PROSECUTOR'S PRESENTATION OF EVIDENCE
First, Reaves argues that the prosecutor engaged in misconduct by offering evidence that was inadmissible. As explained in People v Noble, 238 Mich.App. 647, 660-661; 608 N.W.2d 123 (1999),
[Prosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence. People v Missouri, 100 Mich.App. 310, 328; 299 N.W.2d 346 (1980). The prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be accepted by the court, as long as that attempt does not prejudice the defendant. Id. at 328-329.
Reaves argues that it was improper for the prosecutor to introduce evidence of (1) the discovery of ammunition in his mother's basement, (2) his refusal to participate in a lineup, and (3) the laboratory report regarding the ballistics evidence recovered in this case. As discussed earlier, Reaves has not demonstrated that any of this evidence was inadmissible. Accordingly, the prosecutor's introduction of this evidence cannot be considered misconduct.
Reaves also argues that the prosecutor engaged in misconduct by eliciting Detective-Sergeant James Plummer's opinion testimony that the spent ammunition recovered in this case was consistent with high-velocity ammunition fired from an assault rifle when Detective-Sergeant Plummer was not qualified to testify as an expert. Under MRE 702, a witness with specialized knowledge may offer testimony in the form of an opinion if the testimony will assist the trier of fact in understanding the evidence or determining a fact at issue, and the witness is qualified as an expert by knowledge, skill, experience, training, or education. Although Detective-Sergeant Plummer was not formally qualified as an expert witness, he testified at trial that he had been in charge of the Michigan State Police's evidence technician program and had received training in firearms and ballistics both as a Marine Corps sniper and through the Michigan State Police. Moreover, the prosecutor's theory at trial was that Jones-Hill possessed an assault rifle, and Detective-Sergeant Plummer's testimony would have assisted the trier of fact in determining whether the recovered spent ammunition was of a type that could have been fired from such a rifle. Had Reaves objected, Detective-Sergeant Plummer likely could have been qualified to testify as an expert. At a minimum, the record discloses that the prosecutor had a good-faith basis for believing that Detective-Sergeant Plummer was qualified to provide the challenged opinion testimony. Accordingly, the prosecutor's conduct of eliciting this testimony does not qualify as plain error.
2. MISSTATING EVIDENCE
Reaves also argues that the prosecutor argued facts not in evidence or misstated the evidence during closing argument. We disagree. A prosecutor is afforded great latitude during closing argument. "A prosecutor may not make a statement of fact to the jury that is unsupported by evidence, but she is free to argue the evidence and any reasonable inferences that may arise from the evidence." People v Ackerman, 257 Mich.App. 434, 450; 669 N.W.2d 818 (2003); see also Bahoda, 448 Mich. at 282.
Reaves argues that the prosecutor mischaracterized Officer Patrick Cecile's testimony regarding the ammunition found during the search of Reaves's mother's home. We disagree. On direct examination, Officer Cecile testified that the ammunition was of a type that could be fired from "a rifle." On cross-examination, however, the questioning was directed at whether the ammunition could be fired from a high-velocity weapon, and Officer Cecile agreed that it "can be." During closing argument, the prosecutor argued that, according to Officer Cecile, the recovered ammunition "could have been loaded into a rifle like you see Defendant Jones-Hill carrying and that it could have been fired out of a rifle at a high velocity." Given the cross-examination by Reaves's own counsel, the prosecutor's remarks were a fair characterization of Officer Cecile's testimony. Accordingly, the prosecutor's remarks were not improper. Moreover, to the extent that there was any perceived mischaracterization of Officer Cecile's testimony, a curative instruction, upon timely objection, could have cured any error. Williams, 265 Mich.App. at 70-71. Indeed, even without an objection, the trial court protected Reaves's substantial rights by instructing the jury that the "lawyers' statements and arguments are . . . not evidence" and the jury "should only accept things the lawyers have said that are supported by the evidence or by your own common sense."
Reaves also argues that the prosecutor improperly argued that there was more than one shooter in the following remarks:
Again, ask yourselves, who was in the area of the Ace of Spades on Eight Mile Road carrying a firearm like the one that could have been used who had an altercation only five minutes before the shooting had occurred? The Defendants. It's not a coincidence, ladies and gentlemen, that they were there with all of the tools necessary to have carried out this crime.
Now, the Judge is going to tell you and instruct you on some things. One of the things that the Judge is going to instruct you on is aiding and abetting. The Judge is going to tell you that anyone who intentionally assists someone else in committing a crime is as guilty as the person who directly commits it and can be convicted of that crime as an aider and abettor.
So what does that mean? That means that what Defendant Reaves did in this case was help, assist, aid and abet Defendant Jones-Hill in carrying out this crime. But for Defendant Reaves [sic] involvement in this crime it could not have taken place.
You all probably heard the phrase it takes two to tango. That's what we have here. Without the vehicle, without a driver Defendant Jones-Hill could not have carried out this crime. He could not have fired the weapon and driven the vehicle. It required the help or assistance of somebody else. That somebody else is the Defendant, Defendant Turon Reaves.
Now let's take a look at the assistance that Defendant Reaves gave. You have testimony and you can see on video for yourself, Defendant Reaves or the Ford Fusion that the People submit is Defendant Reaves drive next to that Charger, pull up next to it, get closer to the vehicle and then start shooting That was the testimony. You had heard testimony from victim Toma Al-Saoor that after the victim pulled up on the driver's side of his vehicle they began firing shots from the passenger side, that it pulled in front of them, slowed down and began firing shots at the front of their vehicle. And you saw evidence tech photos of impacts to the front of that vehicle, that Dodge.
Now what does that tell you about Defendant Reaves [sic] involvement? It tells you that he was an active participant. That he was specifically maneuvering that vehicle in a way to position it to put Mr. Jones-Hill in a position in which he would have been able to fire the shots in the way that he did.
It wasn't a coincidence, it wasn't an accident. You would have had to have specifically maneuvered that vehicle in order to get it in the places that you see that vehicle in that video and the testimony that you heard from Mr. Al-Saoor.
Viewing these remarks in context, it is apparent that the prosecutor was not arguing that there was more than one shooter, but rather was arguing that Jones-Hill was the shooter and that Reaves assisted him by maneuvering the vehicle to put Jones-Hill in a position to fire the shots in the manner that he did. Indeed, the prosecutor specifically remarked that the same person could not have fired the shots and driven the vehicle. Reaves has not demonstrated that the prosecutor misstated the evidence in the challenged remarks.
Reaves also argues that the prosecutor inaccurately represented that Reaves went by the nickname "Terry" in the following closing remarks:
You saw visitor logs from that Sherwood Heights Apartment building. Those are significant because at 9:15 p.m. you see a vehicle come into Sherwood Heights, where there has been testimony that Defendant Reaves's girlfriend Ms. Brittney Evans was living at the time. There is an entry in that log from Mr. Owens who said he was working security that night. At 9:15 a person by the name of Terry, which I submit to you all is a nickname for Turon Reaves, pulls in and meets with someone in building six apartment 205, which has been identified as the apartment building in which officers eventually executed a search warrant at, which was Defendant Turon Reaves's girlfriend's house. And it shows that the vehicle that he arrived in that day was a Ford. It gives you a license plate of BTZ 738.
That's important because if you jump ahead to later on October the 14th, 2018, there is another entry at line 13. It is at 3:16 a.m. And at 3:16 a.m. on October 14th, 2018, the shooting would have already occurred. It would have happened an hour or so beforehand.
Again, that is significant because if you look at the vehicle that Terry, again, going to see Evans in apartment 205, building six is now in a Chrysler.
At trial, evidence was presented that at approximately 9:15 p.m. on the night of the shooting, a person who identified himself as "Terry" visited the complex where Reaves's girlfriend lived, and was driving the same Ford Fusion that was involved in the shooting less than five hours later. Approximately an hour after the shooting, a person who again identified himself as Terry again visited Reaves's girlfriend at the complex, but this time was driving a different vehicle. Although Reaves argues that there was no evidence that he went by the nickname Terry, it was reasonable for the prosecutor to infer that the person who identified himself as "Terry" was actually Reaves, given the evidence that the person was driving the same vehicle that Reaves was driving less than five hours later that same night, and that the resident who the person visited was Reaves's girlfriend. Accordingly, the prosecutor's argument was not improper. Bahoda, 448 Mich. at 282.
3. MISSTATING THE LAW
Reaves argues that the prosecutor misstated the elements of first-degree premeditated murder in the following remarks during closing argument:
Ladies and gentlemen, there's no doubt that what happened in this case is first degree murder. The elements of first degree murder are simple. That the killing was done with premeditation or thought out beforehand.
These were innocent kids driving down Eight Mile Road minding their business, enjoying their Saturday night when their Dodge Charger got sprayed with gunfire by a white Ford Fusion. The vehicle pulled up first on the driver's side, then began firing shots and then pulled in front [sic, of] the vehicle and stopped[, ] boxing them in. The vehicles were-the victim's [sic] were forced to reverse their vehicle in order to get away. This is first degree murder.
What is in dispute for you as finders of fact to determine is who the perpetrators of this crime were. The evidence in this case shows that the perpetrators of this crime were the Defendants.
* * *
Ladies and gentlemen, the Defendants in this case are charged with first degree premeditated murder. The Judge is going to tell you that there are elements and we went through those. Basically what the elements are is they are laid out here. The Defendant caused the death of the victim, the Defendant intended to kill the victim, Defendant's intent to kill was premeditated, the killing was deliberate and it wasn't justified. So, basically, it was a murder that happened that was thought about, thought about or premeditated beforehand which we went through.
Reaves appears to complain that the prosecutor failed to mention the necessary element of deliberation. Although the prosecutor did not refer to deliberation in her initial remarks, she did so in the latter remarks. In any event, Reaves does not dispute that the trial court properly instructed the jury on the elements of first-degree murder, and the court also instructed the jury that "if a lawyer has said something different about the law, follow what I said." This instruction was sufficient to protect Reaves's substantial rights.
For the foregoing reasons, Reaves is not entitled to appellate relief on the basis of his unpreserved claims of prosecutorial misconduct.
F. INEFFECTIVE ASSISTANCE OF COUNSEL
Reaves also argues that he was denied the effective assistance of counsel. Because Reaves did not raise an ineffective-assistance claim in an appropriate motion in the trial court, our review of this issue is limited to errors apparent from the record. People v Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004). To establish ineffective assistance of counsel, Reaves must demonstrate that trial counsel's performance fell below an objective standard of reasonableness and that counsel's representation so prejudiced Reaves that he was denied a fair trial. Pickens, 446 Mich. at 338. Reaves must overcome the presumption that the challenged action might be considered sound trial strategy. People v Tommolino, 187 Mich.App. 14, 17; 466 N.W.2d 315 (1991). To establish prejudice, Reaves must show that there was a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. People v Johnson, 451 Mich. 115, 124; 545 N.W.2d 637 (1996).
Reaves argues that defense counsel was ineffective for failing to object to the prosecutor's conduct discussed in Section II(E), supra. As explained in that discussion, none of the prosecutor's challenged conduct has been shown to be improper. Thus, any objection would have been futile.
Defense counsel is not ineffective for failing to make a futile objection. People v Darden, 230 Mich.App. 597, 605; 585 N.W.2d 27 (1998). Further, to the extent that there was any perceived prejudice, the trial court's instructions were sufficient to protect Reaves's right to a fair trial. Therefore, Reaves is unable to demonstrate that he was prejudiced by counsel's failure to object.
Reaves also suggests that this Court should remand this case for an evidentiary hearing to allow him to develop a factual record in support of his claim. However, an evidentiary hearing is only required if a defendant's claim "depends on facts not of record." People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Reaves does not explain why the record is inadequate to review his claims, and he does not identify any facts not of record that he would propose to establish at an evidentiary hearing. Therefore, we deny his remand request. People v McMillan, 213 Mich.App. 134, 141-142; 539 N.W.2d 553 (1995).
II. DEFENDANT JONES-HILL'S REMAINING ISSUES IN DOCKET NO. 352354
A. DENIGRATION OF DEFENSE COUNSEL
Jones-Hill argues that he was denied a fair trial when the trial court interrupted defense counsel's cross-examination of Toma without justification, and impermissibly denigrated defense counsel in the eyes of the jury. We disagree.
"The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo." People v Stevens, 498 Mich. 162, 168; 869 N.W.2d 233 (2015). At trial, Toma, the driver of the victims' vehicle, was assisted by an interpreter while testifying. After defense counsel had spent some time questioning Toma about the positioning of the Fusion before and during the shooting, the trial court interrupted counsel's continued examination of the witness as indicated in the following exchange:
Q. Did they come behind you and get on the other side of you?
A. They must have done that. They must have came behind me and moved to the other side.
Q. Okay. So you don't know how it happened, is that your testimony?
A. I don't know what happened.
THE COURT: Let's stop for a second. Without yelling at me-
MS. SILVER [Defense Counsel]: I wasn't yelling at anybody.
THE COURT No, no. Would you tell me why it makes any difference here? Because there was a shooting, that's undisputed, right?
MS SILVER: Yes, I understand that, Judge.
THE COURT: The question is were your clients involved in the shooting. So, all right, they deny they were the ones in the Fusion so what difference does it make?
MS. SILVER: Because this is cross-examination and I have other questions and other witnesses to come and I am trying to establish how exactly this occurred on the road. How am I not able to ask those questions?
THE COURT: What difference does it make? Your clients say they were not the ones in the Fusion in question, right? So what difference does it make how-it happened.
MS. SILVER: I'm not sure of anything. Now you're, like, doing my defense?
THE COURT: What I'm doing is I'm trying to save time. I fully agree to litigate the issues that are really at issue in this case but how the shooting happened, is that really an issue?
MS. SILVER: Kind of.
THE COURT: How?
MS. SILVER: How the shooting happened is an issue, Judge.
THE COURT: How? Why?
MS. SILVER: Is the Court instructing me not to ask the witness a-
THE COURT: I'm instructing you to get on with it.
MS. SILVER: -question about how the shooting happened?
THE COURT: Well, you have been on this for about 15 minutes now.
MS. SILVER: That's right, trying to get an answer about how it happened.
THE COURT: I don't really see that it is very important and would you please move on. Move on, please. Just keep moving on.
MS. SILVER: So the Court is instructing me not to ask the witness questions about how and where the car is that did the shooting?
THE COURT: I don't think there is anything more you can do with him on this. It is tough enough dealing with a non English speaking witness, Ms. Silver, but is it really important?
MS. SILVER: With an interpreter. Yes, it is important and I'm sorry if my cross-examination does not suit the Court today.
THE COURT: I doubt that, but go ahead. Move on.
BY MS. SILVER:
Q. You have testified in the past that you don't know if the driver was shooting or the passenger was shooting; is that correct?
A. Yes, but I saw the fire coming out of the passenger side.
Counsel then moved on to another subject.
In People v Willis, 322 Mich.App. 579, 588; 914 N.W.2d 384 (2018), this Court summarized when judicial misconduct requires reversal:
A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias. [Jackson, 292 Mich.App. at 598.] In determining whether a trial judge's conduct deprives a defendant of a fair trial, this Court considers whether the "trial judge's conduct pierces the veil of judicial impartiality." Stevens, 498 Mich. at 164, 170. "A judge's conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party." Id. at 171. This is a fact-specific inquiry, and this Court considers the "cumulative effect" of any errors. Id. at 171-172. A single instance of misconduct generally does not create an appearance that the trial judge is biased, unless the instance is "so egregious that it pierces the veil of impartiality." Id. at 171. In evaluating the totality of the circumstances, this Court should consider a "variety of factors," including
the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge's conduct was directed at one side more than the other, and the presence of any curative instructions. [Id. at 172.]
Although Jones-Hill argues that there was no justification for the trial court to interrupt defense counsel's cross-examination of the witness, the court had already allowed defense counsel an opportunity to question Toma about the positioning of the Fusion before and during the shooting, and it intervened only when it believed that counsel's questioning had become excessive-on a subject it believed was only marginally relevant to the asserted defense theory- and the witness had already admitted being unable to recall many of the details. As explained in People v Biddles, 316 Mich.App. 148, 153-154; 896 N.W.2d 461 (2016):
It is well established that the trial court has a duty to control trial proceedings in the courtroom and has wide discretion and power in fulfilling that duty. See People v Conley, 270 Mich.App. 301, 307; 715 N.W.2d 377 (2006). Although a defendant has the right to cross-examine his accusers as secured by the Confrontation Clause, U.S. Const Am VI, a court has wide latitude to impose reasonable limits on cross-
examination to ensure relevancy or because of concerns regarding such matters as harassment, prejudice, confusion of the issues, and repetitiveness. People v Adamski, 198 Mich.App. 133, 138; 497 N.W.2d 546 (1993). A court must "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." MRE 611(a).
We do not believe that the trial court's interruption of defense counsel's cross-examination either prevented Jones-Hill from presenting his defense or pierced the veil of judicial impartiality. The court intervened only after repeated questioning regarding the positioning of the Fusion leading up to the shooting and where the witness had already admitted that he did not know exactly where the Fusion came from before the shooting started, a subject the court also believed had only limited relevance given the defense that Jones-Hill was not involved in the shooting. The trial court had discretion to exercise reasonable control over the interrogation to avoid harassment or needless consumption of time. The court gave counsel an opportunity to explain why continued questioning regarding the positioning of the Fusion was necessary and she did not do so.
Further, the court's comments to defense counsel, while seemingly hostile, did not pierce the veil of judicial impartiality. Admittedly, the court's remarks reflected its impatience with counsel's repeated questioning on a subject that had already been covered and had apparent limited relevance, but the court's remarks were directed at its efforts to understand the relevancy of the questioning and did not involve personal attacks on defense counsel. Moreover, because this exchange was isolated and the court's remarks were limited to inquiring about the relevancy of the repeated line of questioning, it was not reasonably likely to create an appearance of partiality against Jones-Hill. Stevens, 498 Mich. at 171. Accordingly, Jones-Hill is not entitled to a new trial with respect to this issue.
B. EXPERT TESTIMONY
Next, Jones-Hill argues that he was denied a fair trial by the admission of Detective-Sergeant Plummer's opinion testimony without the officer being qualified as an expert witness under MRE 702, and therefore, reversal is required. We disagree. Because there was no objection to the challenged testimony at trial, this issue is unpreserved and our review is limited to plain error affecting Jones-Hill's substantial rights. Carines, 460 Mich. at 763-764.
At trial, Detective-Sergeant Plummer testified that he examined the area of the shooting for evidence and discovered that some bullets had penetrated cars at a dealership and a metal post. He explained that high-powered, high-velocity ammunition would be necessary to penetrate these items, so he believed that an assault rifle that fired high-velocity ammunition was used in the shooting. Jones-Hill argues that this testimony was inadmissible because Detective-Sergeant Plummer was never qualified as an expert in firearms or ammunition.
Jones-Hill asserts that Detective-Sergeant Plummer also offered his opinion that the live ammunition discovered during the search of Reaves's mother's house also could be fired from a rifle. That testimony was provided by Officer Cecile, not Detective-Sergeant Plummer.
Jones-Hill is correct that the trial court was never asked to qualify Detective-Sergeant Plummer as an expert witness. As explained earlier, under MRE 702, a witness with specialized knowledge may offer testimony in the form of an opinion if the testimony will assist the trier of fact in understanding the evidence or determining a fact at issue, and the witness is qualified as an expert by knowledge, skill, experience, training, or education. Although Detective-Sergeant Plummer was not formally qualified as an expert witness, he testified at trial that he had been in charge of the Michigan State Police's evidence technician program and he specifically described receiving extensive training in firearms and ballistics:
Before the Michigan State Police I was a Marine Corps scout sniper. I attended a year-and-a-half of pre sniper training where I received extensive classroom training in weapons, weapons capabilities, as well as ballistics. Upon completion of pre sniper I was selected for scout sniper school where I attended a thirteen week scout sniper school where I was able to pass. And during scout sniper school we, again, received extensive training in weapons, weapons capabilities and ballistics.
Q. Okay. And did you receive any type of firearms training with regards to your employment at Michigan State Police?
A. Yes. I attended a 22 week long academy. In the academy we received, I received training in all sorts of type [sic] of weapons that are employed by the Michigan State Police as well as classroom training. And then the training is ongoing as yearly we have to take a written test and we have to go to the gun range every season, so four times a year.
Moreover, the prosecutor's theory at trial was that Jones-Hill possessed an assault rifle and Detective-Sergeant Plummer's testimony would have assisted the trier of fact in determining whether the weapon used in the shooting was an assault rifle capable of firing high-velocity projectiles. Because the record factually supports that Detective-Sergeant Plummer possessed the requisite qualifications to provide opinion testimony regarding the type of weapon involved in the shooting, and that such testimony would be helpful to assist the jury in deciding a fact at issue, his testimony does not qualify as plain error (i.e., a clear or obvious error), Carines, 460 Mich. at 763, despite that he was never formally qualified as an expert.
To the extent that Jones-Hill also challenges Officer Cecile's opinion testimony that the live ammunition recovered during the search of Reaves's mother's house could be fired from a rifle, we note that Officer Cecile did not provide any testimony regarding his knowledge or experience with firearms or ammunition, but because there was no objection, the record was never developed on this issue. Thus, it is unclear whether Office Cecile lacked the knowledge or experience to offer an opinion regarding different types of ammunition given his background and experience as a police officer.
However, in People v Oliver, 170 Mich.App. 38, 49-51; 427 N.W.2d 898 (1988), modified and remanded on other grounds 433 Mich. 862 (1989), this Court explained that not all technically based testimony is incompetent because a witness was not qualified as an expert. The Court stated:
At trial the two police officers who examined complainant's car testified, over objection, that no hole was made in the car body, but that the dents in the car's surface could have been made by bullets. Defendant contends that, since the officers were not ballistics experts but were rather no more than lay witnesses, the officers' opinions as to the possible sources of the dents invaded the province of the jury and were not admissible under either MRE 401 or MRE 701. We disagree.
MRE 701 provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
This Court in People v Smith, 152 Mich.App. 756, 764; 394 N.W.2d 94 (1986), has interpreted the rule as follows:
MRE 701 provides that opinion testimony by a lay witness is admissible if it is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue. The admission of opinion testimony is within the trial court's discretion. People v [ ] Johnson, 5 Mich.App. 257; 146 N.W.2d 107 (1966).
Recent panels have liberally applied MRE 701 in order to help develop a clearer understanding of facts for the trier of facts. In Heyler v Dixon, 160 Mich.App. 130; 408 N.W.2d 121 (1987), the testimony of several lay witnesses concerning their physical observations of the alleged intoxicated driver and their opinion formed as a result of those observations was allowed in evidence under MRE 701. In Mitchell v Steward Oldford & Sons, Inc, 163 Mich.App. 622, 629-630; 415 N.W.2d 224 (1987), the investigating police officer was permitted to testify that, based upon his observations of skid marks and the position of the two vehicles at the time of impact, and applying calculations from a chart used by the state police, he concluded the plaintiff turned too soon. The Court held:
We believe that Henry's testimony was proper under MRE 701. This rule allows a lay witness to give opinions or make inferences which are rationally based on the perception of the witness. Henry made reliable conclusions from given facts which
people in general could make. Henry's testimony was not overly dependent upon scientific, technical or other specialized knowledge.
Review of a trial court's decision to allow lay opinion testimony in evidence is made under an abuse of discretion standard. People v Cole, 382 Mich. 695, 712; 172 N.W.2d 354 (1969). In our opinion, the officers' testimony in the instant case was no more dependent upon scientific, technical or other specialized knowledge than the investigating officer's testimony in Mitchell, supra. Both officers stated that they were experienced in viewing cars which had been dented by bullets and that they had examined Embry's car. Their opinion assisted the court in determining whether the dents in the car were of the type which could have been made by a bullet. Accordingly, we find no abuse of discretion.
In this case, the challenged testimony was based on the witnesses' opinions that were rationally based on their perceptions of evidence that they observed in the course of their police investigations. As noted, Detective-Sergeant Plummer's testimony clearly demonstrates that he had experience and knowledge in the field of firearms and ammunition and, although the record is not as clearly developed with respect to Officer Cecile, it is not apparent from the record that, given his experience and background as a police officer, he was not competent to offer an opinion regarding the type of ammunition that could be fired from a rifle.
In sum, because it is not clear or obvious that the witnesses were not competent to provide the challenged testimony, Jones-Hill has failed to demonstrate that their testimony arises to a level of plain error.
Affirmed.